Wilkerson v. Horrell

The matter before the Court is the review of the Report and Recommendation (Doc. # 15) filed on December 10, 2008 by United States Magistrate Judge Peter C. Lewis.

Background

On May 12, 2008, Petitioner Michael Wilkerson, a California state prisoner filing pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1). On July 10, 2008, Petitioner filed the First Amended Petition ("FAP"). (Doc. # 3). The FAP asserts claims for (1) ineffectiveness of counsel; and (2) unfairness of the trial proceedings. The FAP states that Petitioner did not raise the second claim for relief in the California Supreme Court. FAP, p. 7.

On December 10, 2008, United States Magistrate Peter C. Lewis issued a Report and Recommendation recommending that this Court dismiss the FAP on grounds that Petitioner failed to exhaust his state court remedies regarding the second claim for relief. (Doc. # 15). The Magistrate Judge ordered the parties to file any objections to the Report and Recommendation on or before December 31, 2008.

On January 15, 2009, Petitioner filed an objection to the Report and Recommendation. (Doc. # 17). Petitioner's objection states in full:

Petitioner filed additional pleading in accordance with the Court. I submit a series of handwritten communications, which was incoherent, do to a heart attack , this heart attack, has been covered up. I had a stroke, and a heart attack. Which would prevent me July 16 2008, that why it is difficult to ascertain what Petitioner is requesting, the reason, I could not, they try to, voluntarily dismissing the Petition while I was in the hospital July 16 2008 thru Sept. Objection, p. 1.

Respondent has not filed objections to the Report and Recommendation.

Applicable Law

The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C § 636(b). The district judge "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. Wang v. Masaitis, 416 F.3d 992, 100 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

Ruling of the Court

Neither party objected to the Magistrate Judge's conclusion that Petitioner failed to exhaust his state court remedies with respect to the FAC's second claim for relief. Petitioner's objection does not assert that the Report and Recommendation erred in recommending that this Court dismiss the FAC on grounds that Petitioner failed to exhaust his state court remedies. The Court has reviewed Report and Recommendation and the portions to which Petitioner objected de novo, and concludes that the Magistrate Judge correctly concluded that the FAC should be dismissed as unexhausted.

Conclusion

IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 15) is ADOPTED. The First Amended Petition for Writ of ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.